COVID-19: countering a crisis

The business effects of the coronavirus shutdown are severe, and will become the more so the longer this situation lasts. But without the emergency legislation and other arrangements to cushion the initial blow, things would have been much worse for many practitioners.

Law Society of Scotland staff and volunteer committee members were heavily involved in many areas, and put in long hours working with Government and public bodies to devise suitable measures. This feature attempts to give a flavour of what has been achieved to date, and priorities for the next phase of work.

Public Policy Committee: overview

Convened by former President Christine McLintock, the Public Policy Committee has oversight of the Society’s specialist policy subcommittees and is responsible for policy development concerning law reform proposals. It coordinated the response to the introduction at great speed of sweeping powers to enable the UK and Scottish Parliaments to deal with the pandemic.

The bills raised important issues around legislative scrutiny, and protection of human rights and of the vulnerable. The Policy team responded with remarkable speed: the Scottish bill was published on 31 March, and the Society had an extensive briefing in the hands of MSPs ahead of it being debated and passed on 1 April – a feat commented on favourably in the chamber.

“The committee has been keeping an eye on the fast paced introduction of legislation to deal with the pandemic, and providing support where we can to the Policy team and the relevant subcommittees,” McLintock confirms. “As ever, the Policy team have excelled in producing timely work of fantastic insight and quality.”

She adds that the committee’s first videoconference meeting “worked brilliantly”, and given the need for the Society to reduce costs as part of its coronavirus response, this will likely become the “new normal”.

There remains other urgent work: “Brexit continues as a pressing issue, so policy subcommittees also continue to work hard on transition and post-transition issues. Work is under way to set up a Private International Law Reference Group to facilitate discussion and to explore solutions to cross-border issues arising during and after transition.”

Property: digital solutions

Perhaps the most urgent issues at the beginning of the shutdown faced the Property Law Committee. Convener John Sinclair relates how the closure of the application record at Registers of Scotland had a profound impact on solicitors in the process or on the verge of settling transactions – and of course their clients, some of whose panic-stricken pleas for help quickly circulated online.

“Our response was to provide immediate guidance to our members, and to work with RoS to find a way of allowing some settlements to proceed,” he recalls. “The complexities came in dealing with other stakeholders, particularly lenders (working through UK Finance), and putting the solutions in the context of the wider Government guidance and the priority to keep people safe.”

While the legislative remedies were principally developed between RoS and Scottish Government, the committee provided detailed input into the draft bill, and discussed changes during the various stages. Since then it has worked very closely with RoS on the proposals for extended advance notices and electronic submission, ensuring a degree of co-ordination between their respective sets of guidance.

Sinclair adds: “Over the last few years, our committee has been used to working constructively and openly with RoS in discussing many issues relating to registration. This meant that when RoS put forward their proposals for interim measures there were existing lines of communication to allow for rapid discussion and bringing others, such as UK Finance, into the discussion.

“There are still a number of areas where further solutions are required, including the current inability to register a deed in the Sasines Register, and so whilst a huge amount has been achieved, there is still further work required.”

He expects weekly calls with RoS to continue, to discuss the closure of the application record, the operation of the interim measures, and further proposals to open up the functioning of the Land Register.

For the future, as regards commercial and particularly lending transactions, Sinclair hopes that the new measures in place for electronic submission of applications will enable many of those transactions to proceed.

For residential transactions however, the general shutdown and Government regulations and guidance will be the principal factor.

“The longer the restrictions last, and the bigger the impact of the shutdown on clients, the harder, and slower, the return to‘normal’ is likely to be.”

On the other hand, the ability to submit advance notices for transfers of part, and to submit applications for land registration electronically, are all benefits. “We would hope that these (and other) improvements are retained and developed further after the restrictions are lifted.”

Civil courts: pushing for a restart

Closure of the courts has also had a massive impact, and the Civil Justice Committee under Iain Nicol has spent many hours on the problems – and proposed solutions – reported by practitioners, firms and bar associations across the country.

Prescription and limitation has been a particular concern, and a detailed proposal has been submitted to the Scottish Government for consideration in the next Coronavirus Bill.

At the same time regular dialogue continues with Scottish Courts & Tribunals Service as it gradually lifts the restrictions on court business (see also the feature on p 20). “The dialogue is intended to help the court system focus on the most important areas of work to address, recognising that things cannot go back to normal overnight,” Nicol explains.

He notes that while agents are able to make some progress with their cases, they are hampered by the lack of court staff working remotely. And as all proofs have been adjourned for several months, along with most procedural hearings, routine processing of civil business has largely ground to a halt. With only 10 hub courts operating out of 39 sheriff courts, and paperwork in the closed courts building up a huge backlog, “It will take weeks if not months to get back to ‘normality’.”

In addition the committee, together with the Professional Practice Committee, has been overseeing the work of the Success Fee Agreement Working Party, set up to work with the Scottish Government on part 1 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 and the Success Fee Agreements Regulations which came into force on 27 April. (For a separate article by Iain Nicol on the regulations, see this month’s additional online copy.) The working party’s proposed style agreement has been brought into line with the regulations, and can be accessed at www.lawscot.org.uk

Civil legal aid: operating changes

On civil legal aid, Patricia Thom and her committee have been liaising and negotiating with SLAB and the Scottish Government on changes to operating procedures and regulations to ensure that applications can be progressed without the need for face-to-face contact with clients, work necessitated by the lockdown can be paid, and quicker payments made of interim accounts to assist with solicitors’ cash flow.

With most firms having to furlough staff, “they have valued the ability to interim fee the Board at far earlier stages than would normally be the case”, she states. However the committee is having to continue to press the Government to progress the changes to the regulations.

Criminal law and legal aid: cash crisis

With criminal defence firms facing immediate and critical cash flow issues, the Criminal Legal Aid committee under Ian Moir worked sometimes almost round the clock, negotiating new ways to make interim claims to SLAB in all criminal matters. Concessions were also secured to allow written pleas triggering ABWOR, to allow another agent to be instructed in a custody case, and soon regulations will allow the duty solicitor to assist in an ABWOR case.

“It has to be acknowledged, the effort and spirit of cooperation and support to the profession from SLAB during our work with them in this time of crisis,” Moir comments. “Long may it continue!”

At the same time, Debbie Wilson’s Criminal Law Committee was spending “an exceptional amount of time” dealing with the Coronavirus (Scotland) Bill, and not only the contentious judge-only solemn trials provisions which were dropped in the face of concerted opposition. Substantial changes were enacted dealing with early release of prisoners, evidential matters, extension of time, and community service.

The Society then set up a working group, including judiciary, members from across the legal profession and lay interests, which explored alternative proposals to dispensing with juries and produced a paper in response to Government consultation on the options. Discussions have continued and replacement legislation is still awaited.

A further working group has been tasked with looking at all other aspects of criminal business; it continues to press for commitments to plan ahead to deal with the backlog of court business and to start safe operational practices in court. Many practitioners have spoken about chaotic and, as regards danger of infection, high risk scenes at courts as the effects of the pandemic began to be felt.

“Several weeks in, the arrangements for necessary criminal court business remain ad hoc,” Wilson observes. “Safety of all attending the courts is paramount, but there is a need for better communication about the arrangements now and planning for the future.”

Both conveners are alarmed at the growing backlog of criminal cases and the length of time untried accused are being held on remand. Here the “new norm”, Wilson believes, will protect the safety of the public, including court officials, by using remote technology where possible. “Getting as much criminal business up and running utilising the closed courts is essential.”

Work also continues to consider how solicitors should conduct police station interviews. At the moment the Society’s advice remains that solicitors should not attend interviews if they do not feel it is safe to do so. It is continuing to engage with Police Scotland, who have published guidance on this for non-police personnel, with a view to ensuring the provision of safe and secure systems for undertaking interviews in accordance with all NHS and Scottish Government advice.

Despite the concessions achieved from SLAB, Moir estimates that most firms will be experiencing at least a 75% drop in income at the moment. “We must get the system moving again... We must get the written pleas up and running so we can accelerate some of those cases where they are capable of resolution.”

As the Journal went to press, he was anticipating news, following further “very positive” meetings, about some summary criminal business restarting safely in the very near future.

Mental health and disability: practicalities

“From mid-March onwards, the extra workload generated by COVID-19 has been intense,” reports Adrian Ward, whose role as convener “amounted to something approaching a full-time job” over the ensuing month.

For solicitors in the sector, social distancing has presented significant challenges in dealing with people with impairments of capacity, mental illness, or other vulnerabilities and disabilities. Also, pre-existing difficulties in obtaining necessary medical reports have been exacerbated, and court processing of guardianship applications has generally been restricted to urgent interim orders. Any such restrictions are inherently discriminatory, Ward points out, where the result is deprivation of effective support to the adult. Similarly, powers of attorney have been unable to be registered when needed, perhaps on an emergency admission to hospital.

The committee successfully sought a reduction, from two years to six months, in the duration of temporary modifications to the mental health legislation, and resolved with the Public Guardian an issue over review of guardianship accounts which was delaying remuneration.

As a significant practical matter, in response to requests from the profession the committee drafted, and agreed with OPG, guidance by which execution of a power of attorney could competently be done remotely – based on a precedent where Ward had had to deal with an overseas granter.

At time of writing, a response is awaited from Scottish Government to a draft of temporary statutory amendments that would, among other things, enable a power of attorney certified by a solicitor to become operable on presentation for registration, rather than waiting for completion of the process.

Ward concludes with a few observations. His committee colleagues have commented that: “We may well be learning lessons for the long term, beyond current restrictions, and that things are perhaps unlikely to return to where they were. In the era of electronic communications, virtual meetings and interviews, and so forth, can requirements for people to be ‘personally present’ be relaxed satisfactorily?”

In addition, two aspects of the current situation are significant in relation to people with relevant disabilities. “First, society as a whole is gaining an insight into some aspects of life that are permanent for people with relevant disabilities, such as restrictions on movement, and inability or difficulty in attending personally for a wide range of purposes. At the same time, however, in relation to such matters the differentiation between non-disabled and disabled people is reduced. It may be that some aspects of this better understanding and reduction in differentiations can be carried forward beyond the current crisis.”

Licensing: back of the queue

Finally, spare a thought for the licensing lawyers, who were also heavily involved with Government ahead of the Scottish bill, but whose clients look set to be the last to have their shutdown restrictions lifted.

“Work in that area for firms has been decimated,” comments convener Archie MacIver. “Our proposals have assisted in certain areas – e.g. holding remote hearings and building in a greater degree of flexibility in the system – but some councils are simply not accepting applications, so despite our best endeavours we have been stymied in those parts of the country.

“Time will tell, but it seems pretty clear that the hospitality sector will be at the back of the queue. It may still be some time before anything even remotely approaching normality is achieved.”